November 12, 2010

Richmond Radiology, P.C. v Travelers Ins. Co. (2010 NY Slip Op 51964(U))

https://www.beynensonlaw.com/case-law/richmond-radiology-p-c-v-travelers-ins-co-2010-ny-slip-op-51964u/

Court: Appellate Term, Second Department
Decided: November 12, 2010
Citation: 2010 NY Slip Op 51964(U) · 29 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Richmond Radiology, P.C. v Travelers Ins. Co., 29 Misc 3d 134(A), 2010 NY Slip Op 51964(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's peer review supplied a factual basis and medical rationale for finding the assignor's testing medically unnecessary. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss for lack of medical necessity. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after denial of the provider's motion and grant of the insurer's cross motion. The chiropractor's affidavit and report adequately supported the defense. The provider submitted no health care practitioner's affidavit meaningfully addressing or rebutting the peer review's conclusions.

Reported in New York Official Reports at Richmond Radiology, P.C. v Travelers Ins. Co. (2010 NY Slip Op 51964(U))

[*1]

Richmond Radiology, P.C. v Travelers Ins. Co.

2010 NY Slip Op 51964(U) [29 Misc 3d 134(A)]

Decided on November 12, 2010

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 12, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : RIOS, J.P., PESCE and GOLIA, JJ
2009-1780 Q C.

Richmond Radiology, P.C. as Assignee of RUTHIE JUSINO, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 1, 2009, deemed from a judgment of the same court, entered August 4, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 1, 2009 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of medical necessity. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment. Plaintiff’s appeal ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to plaintiff’s contention, the affidavit and peer review report of defendant’s chiropractor set forth a factual basis and medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the testing performed on plaintiff’s assignor. As plaintiff failed to proffer an affidavit from a health care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), the Civil Court properly granted defendant’s cross motion for summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is affirmed. [*2]

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: November 12, 2010

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the chiropractor's affidavit and peer review set forth a factual basis and medical rationale for lack of medical necessity of the testing, and the provider offered no practitioner affidavit meaningfully referring to or rebutting it.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52015(U))The insurer's sworn peer review established lack of medical necessity for testing, and the practitioner's affidavit did not rebut it.
Complete Radiology, P.C. v Geico Ins. Co. (2012 NY Slip Op 50752(U))The insurer's affirmed peer reviews supplied a factual basis and medical rationale for finding the services medically unnecessary.
Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U))The treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form.
Richmond Radiology, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52210(U))The insurer's affirmed peer review raised a triable issue of medical necessity despite the provider's challenge to the information reviewed.
Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))The insurer's conclusory expert testimony failed to establish lack of medical necessity because it supplied no factual basis or medical rationale.